It is not fair to the crown prosecutors and it would create an image of an arbitrary, unfair system of criminal justice.
What of the image of our judges? The judges do not often speak publicly--I don't know if they've been here to speak--but they must also be so concerned that Bill C-9 is sending a message that we don't trust our judges, and that Bill C-9 is removing their discretion as to what they believe will keep Canadians safe.
Faced with a candidate deserving a conditional sentence of imprisonment but charged indictably, the judge may be tempted to sentence too low because the personal price of prison as compared to the gravity of the offence just seems too high. Why remove a tool that has been used in 55,000 cases since 1996?
Certainly there are examples where the conditional sentence of imprisonment did not seem appropriate, and the press releases seem to show that, but there have been studies indicating that when proper information about the details of a case are given to Canadians, they will often disagree with the press report and agree the sentence was appropriate. The judges see all that information; they have all the evidence. The evidence is rarely simple--it's not a bad person did a bad thing. The evidence is evidence of addictions, of learning disabilities, of mental illness, of societal problems, of desperation, of problems requiring therapy, of complex individuals who can remain functioning members of society. Judges are the best placed to evaluate this.
Why remove a tool that was not invented here? Europe has successfully used the conditional sentence of imprisonment for a very long time, European countries with lower rates of violence than we have here or than our American friends have south of the border. Our friends to the south have never tried the conditional sentence of imprisonment. Do we really want to do what they've done--fill prisons and see no correlating drop in the violence in society?
The conditional sentence of imprisonment--and on this I'll terminate--brought important changes to Canada that the committee may wish to be aware of. The judges would not use it until probation services had the funds. So probation services across the country were given the funds by the provinces to make sure that the conditional sentence of imprisonment was enforced. It was used when probation was not enough. The Supreme Court of Canada said that. Don't confuse it; don't say it's just another probation. It was used when probation is not enough but when fewer than two years incarceration is enough. Those are the parameters. It's not used in any crime at all.
The comparison was made here before this committee to probation, saying that a suspended sentence is the same thing as a conditional sentence of imprisonment. It is not, ladies and gentlemen. The conditional sentence of imprisonment, a breach followed by an intervening event, is punished by a consecutive sentence, and you cannot do that with a probation order. This is a much more severe, much stronger law-and-order tool than it's being made out to be in some circles.